When you make a bequest in your will to a beneficiary who is married in community of property, the inheritance will fall into the joint estate of that beneficiary and his or her spouse. If a testator seeks to avoid this result, the will must expressly state that the bequest is excluded from that beneficiary’s joint estate which he or she shares with his or her spouse.
Such an exclusion will however not protect the beneficiary from a claim by creditors of his or her spouse. The court in Du Plessis v Pienaar NO and others held that where a person in a marriage in community of property incurs a debt, his or her spouse is also liable for that debt. This means that the creditors of the beneficiary’s spouse will be entitled to bring a claim against the joint estate, as well as against such a beneficiary’s separate property, including an inheritance, in seeking settlement of their claim.
Contact STBB for assistance in the drafting of your will.